United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION DENYING PLAINTIFF'S
APPLICATION TO PROCEED IN FORMA PAUPERIS
Theresa L. Fricke, United States Magistrate Judge
case has been referred to Magistrate Judge Theresa L. Fricke
pursuant to 28 U.S.C. § 636(b)(1) and Local Rule MJR 3
and 4. This matter comes before the Court on plaintiff's
filing of an application to proceed in forma
pauperis. Because plaintiff has incurred at least three
strikes and cannot show he is under imminent danger of
serious physical injury, he may not proceed in forma
at the time he commenced the instant action, was incarcerated
at Pierce County Jail. Plaintiff submitted a proposed 42
U.S.C. § 1983 complaint, Dkt. 1, to the Court on October
19, 2017. The Clerk notified plaintiff by letter of
deficiencies in his submission, including that the filing fee
requirement must be met and that plaintiff must either pay
the $400.00 filing fee or file a proper application for
in forma pauperis (IFP) status. Dkt. 2. On November
1, 2017, plaintiff filed a pro se Motion for Leave
to Proceed In Forma Pauperis (Dkt. 5). However, the November
1, 2017, IFP application lists entirely different defendants
(Amazon, Google, Barns and Nobles, Ebay, Trafford Publishing,
Stoel Rives, LLP) and claims (civil conspiracy and civil
racketeering) than are identified in the proposed complaint.
Compare Dkt. 5 with Dkt. 1. The Court concludes that
plaintiff mistakenly filed the IFP application for a
different case under this case number. On November 8, 2017,
plaintiff filed another Motion for Leave to Proceed In Forma
Pauperis (Dkt. 6), which lists at least some of the same
defendants (Tiffany Garcia) and the same claims (dental issue
and Eighth Amendment violation) as are listed in the proposed
complaint. The November 1, 2017, IFP application (Dkt. 5)
should be stricken as it does not relate to the instant
action but appears to have been intended for a different case
entirely and mistakenly filed under the case number for this
action. As such, the IFP application filed on November 8,
2017, is the only proper and valid IFP application pending
before the Court.
proposed complaint, plaintiff alleges defendants are failing
to provide plaintiff with necessary care by refusing to
provide him with replacement dentures, and as a result he has
experienced painful gums and lost weight. Dkt. 1. Plaintiff
alleges defendants' behavior violated his Eighth
Amendment rights. Id.
Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915,
governs IFP proceedings. Under § 1915(a), a district
court may waive the filing fee for civil complaints by
granting IFP status to individuals unable to afford the fee.
Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir.
2007). “To address concerns that prisoners proceeding
IFP were burdening the federal courts with frivolous
lawsuits, the PLRA altered the IFP provisions for prisoners
in an effort to discourage such suits.” Id.
(citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 312
(3rd Cir. 2001) (en banc)). Indigent prisoners still receive
IFP status if they meet the requirements, but § 1915(b)
states prisoners proceeding IFP must pay the filing fee when
funds become available in their prison accounts. 28 U.S.C.
§ 1915(b); Cervantes, 493 F.3d at 1051.
“Additionally, prisoners who have repeatedly brought
unsuccessful suits may entirely be barred from IFP status
under the three-strikes rule.” Cervantes, 493
F.3d at 1051-52. The “three-strikes rule, ”
contained in §1915(g), states:
[i]n no event shall a prisoner bring a civil action under
this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of
serious physical injury.
Court notes the PLRA's strike provision does not
distinguish between dismissals with prejudice, dismissals
without prejudice, actions dismissed on the merits, or
actions dismissed pursuant to the PLRA's screening
provisions. O'Neal v. Price, 531 F.3d 1146,
1154-55 (9th Cir. 2008). When an application is rejected
pursuant to the screening provisions of 28 U.S.C. § 1915
and the case is dismissed, the dismissal counts as a strike.
Id. at 1155.
Strikes Under 28 U.S.C. 1915(g)
review of court records from this District shows at least
three of the cases plaintiff filed while incarcerated were
dismissed for failure to state a claim before the date
plaintiff properly filed his motion for IFP in this case
(November 8, 2017).
filed Casterlow-Bey v. Google Internet Search Engine
Company, (Case No. 17-5621-RBL) while incarcerated at
Pierce County Jail. That case was dismissed by order dated
October 23, 2017, for failure to state a claim upon which
relief may be granted. See Dkt. 11 in Case No.
filed Casterlow-Bey v. Google.com, Inc., (Case No.
17-5764-BHS) while incarcerated at Pierce County Jail. That
case was dismissed by order dated October 30, 2017, for
failure to state a claim upon which relief may be granted.
See Dkt. 7 in Case No. 17-5764-BHS.
filed Casterlow-Bey v. National Park Service, (Case
No. 17-5711-RBL) while incarcerated at Pierce County Jail.
That case was also dismissed by order dated October 30, 2017,
for failure to state a claim upon ...